PRBs

U.S.-Educated Detainee Asks U.S. Board To Release Him From Guantanamo

 

GTMO -- sarifulla paracha -- at age 67 -- with smile

Mr. Parahca two years ago at age 67

This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.

 

The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.

Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.

The PRB is expected to render a decision in Mr. Paracha’s case in about a month.

Today’s hearing – Who? Where?

Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.

We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.

Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.

The detainee – Mr. Paracha – was present, by close circuit TV.

Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.

 The hearing begins

 The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.

GTMO -- sarifulla paracha -- at age 62

Mr. Paracha

At 9:14 a.m., a picture appeared on the almost ceiling-height screen.

 

In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.

In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office.  Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.

On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.

Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.

The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.

The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.

Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:

Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them. 

Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.

While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.

The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.

No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today.  A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board website here. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:

For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.

David H. Remes

Approved for Public Release
UNCLASSIFIED

That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.

Mr. Paracha’s background

Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.

Uzair Paracha

Uzair Paracha, Mr. Paraha’s son, is serving a 30 year sentence in a U.S. federal prison on terrorism-related convitions.

The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.

 

Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.

Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.

The hearing – a Periodic Review Board – PRB

Today’s hearing is called a Periodic Review Board (PRB),  and was pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.

The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.”   Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.

Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.

Paracha’s 3 PRB hearings — summary

Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.

  • File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Saifullah Abdullah Paracha (PK-I 094)

On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.”  The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States.  After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.

  • Full Review. It was Mr. Paracha’s full review that was held today. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.

 The Board will likely publish a decision on this full review in a month or so.

More on this hearing?

The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.

PRBs v. Military Commissions

Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.

PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.

Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.

 

edwards and fagundes -- Pentagon -- 21 March 2017

Professor George Edwards & Judge Aline Fagundes at the Pentagon before the Periodic Review Board (PRB) held on 21 Marh 2017

Judge Fagundes’ observations

 

Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:

  • She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
  • She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
  • She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).

Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.

George Edwards

Founder, Periodic Review Board (PRB) Project

Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)

Program in International Human Rights Law (PIHRL)

Indiana University McKinney School of Law

_______

Yemeni Detainee asks Obama Administration to release him from Guantanamo

gtmo-prb-6-december-2016-mohammad-ahmad-abdallah-al-ansi

al Ansi in a Department of Defense photo.

Today, after 14 years imprisonment at Guantanamo Bay, Cuba, a Yemeni detainee named Mohammad Ahmad Abdallah al Ansi asked the U.S. Government to transfer him from Cuba to a third country. If released, 58 detainees would remain at Guantanamo, down from a record high of 780 detainees.

This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country. It is unknown whether the next President will rescind this Executive Order and cease Period Reviews, and whether any of the 5 dozen remaining detainees will be released after January 2017.

President Obama’s 2011 Executive Order calls for three types of PRBs: (a) an Initial PRB for all detainees, involving a hearing at which the detainee may appear and speak on his own behalf; (b) a file PRB, held 6 months after a detainee is denied release following an initial PRB and which detainees are prohibited from attending; and (c) a full PRB, held if after a file review the Board finds that the detainee is a “continuing” risk to US national security.

Al Ansi, who is also known as prisoner number YM – 029, had his initial PRB in February 2016, a file PRB in September 2016, and a full PRB today. This article discusses the initial, file and full reviews.

al Ansi’s initial PRB

At al Ansi’s initial PRB on 23 February 2016, he appeared in person. On 23 March 2016, a month after the initial PRB, the Board made its final determination as follows:

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.

In making this determination, the Board considered the significant derogatory information regarding the detainee’s past activities in Afghanistan. Further, the Board noted the detainee’s lack of candor resulting in an inability to assess the detainee’s credibility and therefore his future intentions.

The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to continue to be compliant, continue taking advantage of educational opportunities and continue working with the doctors to maintain his health. The Board encourages the detainee to be increasingly forthcoming in communications with the Board.

al Ansi’s file review PRB

After his initial PRB, al Ansi had a file review PRB, which he was not permitted to appear, with a Board determination based only on his written “file”.  His file review was held on 13 or 14 September 2016 (according to http://www.prs.mil), and on 14 September 2016 (according to the written file review final determination) the Board ruled as follows:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Muhammad Ahmad Abdalla al-Ansi (YM- 029)

On 14 September 2016, the PRB conducted a file review for Muhammad Ahmad Abdalla al­ Ansi (YM-029) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.”  The PRB previously conducted a full review of the detainee and on 23 March 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States.  After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.0.  13567.

I watched al Ansi's PRB broadcast live from Guantanamo Bay into a nondescript Pentagon conference room this morning, with a handful of human rights advocates and one member of the media.

I watched al Ansi’s PRB broadcast live from Guantanamo Bay into a nondescript Pentagon conference room this morning, with a handful of human rights advocates and one member of the media.

al Ansi’s Full PRB

Today’s PRB (6 December 2016) as Ansi had a “full” PRB review.

Today’s full PRB, like all the other PRBs, was held at Guantanamo Bay. Today’s session was broadcast by live close circuit TV (CCTV) to a secure location at the Pentagon for viewing by non-governmental organizations and the media.

I observed the hearing in a modest Pentagon conference room, joined by representatives of non-governmental organizations (Judicial Watch, Heritage Foundation, ACLU, and Human Rights First) and the media (Courthouse News). When we watched these proceedings piped in from Guantanamo, we also had 2 to 3 military or civilian escorts or technicians in the room with us, but I will not reveal further information about the identities, ranks or affiliations of these individuals (all of whom are always very friendly and nice!).

Members of the PRB Board – which comprises one representative each from the Departments of Homeland Security, State, Justice and Defense; the Joint Chiefs of Staff; and the Office of the Director of National Security – were not physically at Guantanamo Bay, but watched the proceedings from the D.C. area, presumably from their respective offices.

It is unclear when the Board is expected to make a final determination on this full PRB, and whether that determination will be made before the Obama Administration ends on 20 January 2017.

Some of the words spoken during the hearing were in Arabic, and were spoken by an on-camera interpreter.

An off camera voice, presumably from but not necessarily from Guantanamo, advised in English on the nature of the hearing, the format, and the short agenda.

Another off camera voice read aloud the government’s “unclassified summary statement”, in English, of behavior that al Ansi allegedly engaged in, both before he arrived at Guantanamo and after he arrived.

After the government’s unclassified summary statement, the personal representative read an opening statement in English.

Then, al Ansi’s private counsel read a statement, also in English.

After the statements, an off camera voice asked if anyone had any questions. There were none.

The unclassified portion of hearing ended roughly 15 minutes after it started. Observers were invited to leave the conference room, since Observers are not permitted to observe classified portions of the PRB hearings.

Who is Mohammad Ahmad Abdallah al Ansi?

He is 40 or 41 years of age, born in Yemen. The government paints a picture of him as an avowed war criminal member of al Qaeda, as being loyal to Osama bin Laden, and as a person slated for an aborted hijacking in Asia meant to coincide with 9/11. The government has kept al Ansi in prison at Guantanamo Bay for over 14 years, and has on multiple occasions affirmatively ruled that he posed a threat to the national security of the U.S. Indeed, this same PRB ruled twice this year (February and September 2016) that al Ansi should not be released.

al Ansi’s personal representative and private counsel painted a different picture of al Ansi. The private counsel spoke about al Ansi’s suitability for release, and what he might do constructively upon release. Though the personal representative did not directly speak to the issue of whether he thought al Ansi posed a continuing threat to U.S. national security, the personal representative did not speak against release.

Today’s hearing itself

Today’s full PRB hearing commenced about 9:06 and ended 15 minutes later at about 9:21.

al Ansi sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from him, to al Ansi right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.

Throughout much of the hearing, al Ansi, who was dressed in white non-descript attire, sat with his elbows resting on the table, hunched a little forward, flipping through documents in front of him, possibly reading through the documents. It was impossible for us to see on the screen what the nature was of the pages in front of al Ansi, or in what language the pages were written. At times he would rest his forearms on the table, with his hand clasped, eyes cast downward.

Government’s unclassified statement

An off-camera woman’s voice read aloud the Government’s “unclassified statement” in which the Pentagon contended that al-Ansi

traveled to Afghanistan in 1999, where he joined al-Qa’ida, swore bayat to Usama Bin Ladin, and served as Bin Ladin’s bodyguard. Judging from other detainee statements and corroborating information [al-Ansi] may have been selected to participate in an aborted hijacking plot in Asia intended to coincide with the 9/11 attacks. He was captured by Pakistani authorities after the battle of Tora Bora in 2001. [al-Ansi] has been mostly compliant with the detention staff at Guantanamo, and his last disciplinary infraction was in June 2014. He has not expressed support for extremist causes or maintained contact with terrorists at large.”

Private Counsel Arguments supporting al Ansi’s request for transfer

al-Ansi’s was represented at this PRB by private counsel Beth Jacob who is a partner at the New York law firm Kelley Drye & Warren, where she represents generic pharmaceutical companies.  Before she joined Kelley Drye & Warren, she represented the Port Authority of New York & New Jersey in litigation arising out of the 9/11 attacks, representing 9/11 victims who sought compensation. She had previously been an assistant district attorney i n New York, prosecuting fraud and official corruption.

She only began representing al Ansi since after his initial PRB ruling finding that he continued to pose a threat to national security of the United States.

She pointed out that al Ansi showed her some of the artwork created at Guantanamo Bay, and she showed it to a New York-based artist, who “was struck by his ability and innate talent , as she has written in her letter to this Board”.

In arguing that al Ansi should be released from Guantanamo Bay, she noted that the New York artist and Reprieve said that. “Mr. al Ansi’s art will stand him in good stead if he is deemed transferrable” for several reasons, including: (a) ‘it will give him something to do and a means of expression, in the first days and weeks after his transfer”; (b) “he will be part of the community of artists, which will provide stability and social contacts; and (c) “there i s the possibility of earnings from his art.” She went further to state that “Mr. al Ansi is planning for more practical ways to make a living – he told me he would like a construction job, and among the many classes that he is taking here at GTMO is one about small business.”

In support of her arguments supporting al Ansi’s transfer, his private counsel argued that his: “family still has resources which they are completely willing to use to help their brother start a new life after Guantanamo , as shown by the statements the family submitted to the first board and this panel. His family will be a stabilizing force when he is transferred.

Further, she argued that his health situation supported transfer, though the details of his health situation were not revealed, as a portion of her letter was redacted. She wrote:

The second factor [supporting transfer] is his health. [Redacted] [Redacted] [Redacted] [Redacted] He knows that managing these chronic conditions takes much time, effort and attention, and that he must follow a strict diet and exercise regimen , in addition to his medications.

She argued that if released, he will also have support of the Carter Center, founded by President Carter, and Reprieve’s Life After Guantanamo project, which has helped over three dozen former detainees.

Personal Representative Statement

al Ansi’s personal representative, who was a military officer in fatigues, read a simple, prepared 1-page statement that noted that

al-Ansi has intensely participated in the PRB process”,  has “maintained a record of perfect attendance for meetings with his Personal Representative (PR) and Private Counsel (PC) despite the constant change in schedulling”, and that his “professional manner throughout all engagements with his PC and PR has not wavered.

The personal representative noted that:

He continues to enthusiastically maintain his compliant behavior with the Joint Task Force (JTF) Guard Force and continues to engage with the JTF Medical Staff in order to deal with chronic health issues.  In addition, Mr. Al-Ansi has not ceased to passionately take advantage of the educational opportunities to include courses in Mathematics , Science, English, Spanish, Life Skills, Computers, Art, and recently started the Arab British Academy for higher education studies.  Since July of 2016, he has created an additional 150 quality works of art.  Seven additional works of art are included in his case submission.  Recently, he has enrolled i n Small Project Management , Business Administration, Accounting and Ledgers classes.

Unlike other personal representatives in other cases, this Personal Representative did not say whether or not he believed that al Ansi is or is not a threat to the security of the United States”.

By George Edwards,

Professor of Law, Indiana University McKinney School of Law

Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project

Faculty Director (Founding), U.S. Military Commission Observation Project

Libyan Detainee Skips Guantanamo Bay Parole Hearing

al libbi - image

The PRB for al Libbi is scheduled for Tuesday, 16 August 2016.

Today a Libyan detainee had an opportunity to formally ask a Guantanamo Bay panel to release him from the remote island prison. But the detainee, nicknamed “al Libbi”, did not show up for the hearing, which proceeded without him.

The hearing — called a Periodic Review Board (PRB) — opened at 9:02 a.m. in a back corner of the main Guantanamo Bay courtroom. From my perch in a Pentagon conference room where the hearing was broadcast live via secure link, I could see al Libbi’s empty short-backed chair, tucked under a table on which sat a tall personal unused microphone.

Seated at the table were al Libbi’s personal representatives”, in U.S. military uniforms, who had been appointed by the U.S. government. There was no interpreter, as there was nothing to interpret and no one for whom to interpret. And, there was no personal private counsel, as al Libbi apparently has no lawyer.

Other images visible on the large Pentagon video screen were a few items on the narrow table top at which the representatives sat, and the blank white walls of a narrow slice of the courtroom.

Record short PRB

The Pentagon has conducted around 50 or so PRBs. They have tended to last about 20 or more minutes each, with the government reading an unclassified summary about the detainee, followed by the personal representatives speaking on behalf of the detainee, and concluding with questions that members of the PRB might have for the personal representatives.

Today’s PRB lasted about 7 minutes, from approximately 9:02 to 9:07. Others in the room with me said that this was likely the shortest of the dozens of PRBs they have attended.

If al Libbi is cleared for release after his initial review today, he would have no additional hearings. If he is not cleared for release he would have a “file review” every six months. If he remains uncleared, he would have a “full review” every three years.

PRBs are authorized by President Obama’s March 2011 executive order. If a PRB determines that a detainee is not a threat to the national security of the U.S., the detainee becomes cleared for release. If deemed a continuing threat, the detainee stays at Guantanamo, but is entitled to subsequent PRBs.

PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings.

Who is al Libbi?

al Libbi’s full name is Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi, and he is registered at Guantanamo Bay as ISN 10017.

He hails from Libya, and is an alleged high-level member of al Qaeda. He was arrested near Peshawar, Pakistan, following his detention at a secret camp previously. He is alleged to have at one point been the 4th highest-ranking member of al Qaeda.

Al Libbi is considered to be an HVD (“High Value Detainee”), as compared to the LVD’s (“Low Value Detainee”).

Detainees released after PRBs

About 45 the 61 men remaining captive at Guantanamo are entitled to PRBs per the rules, and about 40 have had an initial review. Many who have had initial reviews were subsequently cleared for release, and many of those have actually been released post-initial review, including a number who were repatriated to the United Arab Emirates, reportedly on Saturday, 13 August 2016, while I was on a 2-day tour of Guantanamo Bay detention facilities.

As of today, 61 prisoners remain at Guantanamo Bay, with 15 being released over the weekend.

Guantanamo has 61 prisoners left after 15 released

DSC_0943

Sunrise over Guantanamo Bay detention camps on Sunday, 14 August 2016.  Fifteen detainees gained their freedom this weekend. Photo by George Edwards.

Today the Pentagon announced that 15 detainees were transferred for resettlement from Guantanamo Bay, Cuba to the United Arab Emirates.

Six of the detainees were released after a “comprehensive review” pursuant to President Obama’s 22 January 2009 executive order, by the Guantanamo Review Task Force. This task force, comprising six departments and agencies, unanimously approved release of the following 6 detainees:  al-Busi, Sulayman, Kazaz, al-Muhajari, al-Adahi, and al-Mudafari.

The other nine detainees were released following Periodic Review Boards (PRBs), authorized by President Obama’s 2011 executive order, that calls representatives of 6 departments or agencies to assess if continued detention “remain[s] necessary to protect against a continuing significant threat to the security of the United States”. These 9 detainees are:  al-Mujahid, Jarabh, Kamin, bin Hamdoun, al-Razak (aka Haji Hamidullah), Ahmed, Salih, Obaidullah, and al-Marwalah does not remain necessary to protect against a continuing significant threat to the security of the United States. As a result of those reviews, which examined a number of factors, including security issues, al-Mujahid, Jarabh, Kamin, bin Hamdoun, al-Razak (aka Haji Hamidullah), Ahmed, Salih, Obaidullah, and al-Marwalah were recommended for transfer by consensus of the six departments and agencies comprising the Periodic Review Board.

PRBs consist of representatives from the Departments of Defense, Homeland Security, Justice, and State; the Joint Chiefs of Staff, and the Office of the Director of National Intelligence.

My visit to Guantanamo Bay this weekend

I was at Guantanamo Bay yesterday, Sunday the 14th, and was briefed by the Chief of the Joint Detention Group, Rear Admiral Clarke. The topic of reduction in number of detainees was discussed. However, he did not mention that the number of detainees at Guantanamo Bay was that weekend decreasing by 20%, from 76 detainees on Friday to only 61 detainees by Monday.

He and others we met with on Saturday and Sunday did discuss the justification for having almost 2000 Joint Detention Force personal for fewer than 100 detains, and that is because staffing is linked in part to structures and facilities, and not linked specifically to individual detainees or the number of individual detainees.

Pentagon holds hearing on whether to release Yemeni detainee Zakariya

Omar Mohammed Ali al-Rammah - Internment Serial Number 1017

Omar Mohammed Ali al-Rammah – Internment Serial Number 1017 (“Zakariya”)

I was back at the Pentagon today at 7:30 a.m. (Thursday, 21 July 2016) to monitor the Periodic Review Board (PRB) hearing during which Yemeni detainee # 1017 asked the U.S. government to release him from the Guantanamo Bay, Cuba prison after being held there for over 13 years, about one-third of his life.

Omar Mohammed Ali al-Rammah, who is referred to as “Zakariya” by his U.S. Government personal representative and “Zakaria” by his private counsel, hopes that the PRB will find that he is not a threat to US national security, and that the U.S. Government will thus release him Guantanamo detainees can either be repatriated to their home country, or resettled in a third country.

Currently, 76 detainees remain at Guantanamo Bay, down from the approximately 780 detainees who have been held at the remote prison since January 2002.

pentagonMonitoring today’s PRB

After winding down Pentagon corridors, my escort and I arrived at the non-descript conference room where we would watch live feed direct from Guantanamo. We were later joined by 3 NGO representatives and several military officials.

The PRB was scheduled to begin at 9:00, but Guantanamo informed us that we would be on a 5-10 minute delay. While waiting, we caught the tail end of a Military History Channel show on Gettysburg, and heard details of battle strategy successes and failures, the carnage, and how Gettysburg got its name.

military history channelWe then watched the beginning of The Wehrmacht: The Turning Point, that shifted us from the American Civil War to World War II.

At 9:06 or so, the Military History Channel was switched to the video-conference platform, and we could see Zakariya, his U.S. Government-appointed personal representative, his private counsel, and a linguist, sitting around a small, rectangular table in what looks like a Guantanamo Bay trailer.

The PRB commenced at 9:08.

The large screen image of the Guantanamo participants was a bit grainy, though I could see the faces of the linguist, he personal representative, and private counsel pretty well. Zakariya sat furthest from the camera, and his image was not as neatly visible, such that it wasn’t clear to me whether he had a closely cropped beard or was clean shaven. (It was clear that he did not have a big, bushy beard as last week’s detainee had.)

Zakariya wore an elbow length white garment, like a classy rounded-neck tunic, with what appeared from a distance to be an emblem or logo on the left breast. His rounded glasses complemented a face that looked young, compared to the faces of some of the detainees I have seen via video at the Pentagon and Ft. Meade, and whom I’ve seen in person at Guantanamo Bay.

Zakariya had three stacks of paper in front of him, and during the hearing he would periodically shuffle the pages. He’d pick up a sheet from one stack and place it in another stack, then later do the same with another sheet, then later shift the paper back to the original or the third stack. At times he sat seemingly patiently, with his hands folded gently on the table-top.

The linguist uttered not a word the entire hearing. The voice of unseen interpreter would at times chime in, with the interpretation being one way – with the non-Arabic speakers speaking to Zakariya.

Zakariya did not speak in the public portion of his PRB, as he is not permitted to do so.

Why? Because everything that Zakariya says is presumed to be classified, and the public is not entitled to be privy to classified information. So, NGOs, media, and others without security clearances cannot hear a detainee speak directly at his PRB. Some detainees appear to authorize their PRB transcripts to be posted on Periodic Review Secretariat’s (PRS’s) website.

After formalities, presented off-camera by male and female voices, the personal representative read his one page Opening Statement. Then the private counsel read her two page Opening Statement.

No PRB member had any questions. The public session ended about 18 – 19 minutes after it began.

Zakariya’s background – early life & leading up to capture

Zakariya was born and raised in Jeddah, Saudi Arabia, but his family is by blood Yemeni.

His personal representative indicated that in the 1990s Zakariya traveled to Bosnia to help protect Muslims there. After being injured, he returned home for a couple of years before traveling to Chechnya to help Muslims there, and then after further training in Afghanistan traveled to the Republic of Georgia. He was captured in Georgia, transferred to Afghanistan for a year, and then sent to Guantanamo Bay. He is approximately 40 or 41 years of age.

U.S. Government’s view of Zakariya’s activities

Zakariya’s personal representative’s comments about Zakariya’s time in Chechnya, Afghanistan, and Georgia are consistent with what the Government outlined in an unclassified summary it read into the record at this morning’s PRB. But, the Government version includes specific allegations not mentioned in the personal representative’s statement (or the private counsel’s statements).

The Government’s unclassified statement states that Zakariya was “a trusted but low-level mujahidin facilitator” and he “arranged to acquire fraudulent passports, and sought to acquire weapons, ammunition and other supplies for mujahidin operations in Chechnya”.

No contact with Zakariya’s family; Life after Guantanamo?

In today’s remarks, all sides agreed that Zakariya had had no contact with family since his arrival at Guantanamo Bay, and that he has little formal education. While the Government states that “he has not articulated any plans or hopes for his life after release”, his private counsel stated that “he would like to work in a store, perhaps one selling sweets, or drive a taxi”. Furthermore, the private counsel stated that Reprieve’s “Life After Guantanamo” program “has agreed that Zakaria can participate in that program”, and that two international law firms (including the private counsel’s firm — Kelly, Drye & Warren), “are committed to continuing our work as his lawyers to give him or find for him whatever assistance is needed.”

The U.S. Government Unclassified Summary for Zakariya, that was read into the record today by a faceless female off-camera voice, is here:

 

The Opening Statement of Zakariya’s U.S. Government’s Personal Representative and the Opening Statement of Zakariya’s Private Counsel are here:

 

What is a PRB?

Today’s hearing is a Periodic Review Board (PRB), and was conducted pursuant to a 2011 Executive Order which has required most detainees to have a “periodic review” of their detention status. Though Zakariya has had similar reviews under now defunct processes, this was his “initial review” (or “initial PRB”) under the 2011 procedure.

If a detainee is cleared for release after his initial review, he would have no additional hearings. If he is not cleared for release he would have a “file review” every six months. If he remains uncleared, he would have a “full review” every three years.

About 60 the 76 men remaining captive at Guantanamo are entitled to PRBs per the rules, and about 55 have had an initial review. Many who have had initial reviews were subsequently cleared for release, and many of those have actually been released post-initial review.

Yesterday, 20 July 2016, the Pentagon released PRB hearing dates for 7 additional detainees, with roughly 2 scheduled each week in August 2016. I was informed that an additional 3 PRBs will be scheduled, and these will be the final “initial reviews” for all of the detainees eligible for PRBs.

PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings.

Who else was present at the PRB?

As mentioned, present in the room in which Zakariya sat were his personal representative, his private counsel and a linguist. Four NGO representatives and several military officials could see those four people on two screens in our Pentagon conference room.

Hidden voices announced other people who were present for the hearings, though none of these others who were “present” could be seen by us at the Pentagon. Presumably these others were in virtually attendance, with some of them persona even viewing from a different room at the Pentagon. Some who were present were certainly on sight at Guantanamo Bay.

Others present for the PRB but out of sight included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also present but out of sight were re the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer.  And, as suggested, staff at Guantanamo Bay were necessarily present, and also out of sight.

Other information – PRB, Other proceedings

The Government is expected to release additional PRB-related documents over the next couple of days.

FYI, the New York Times has posted 5 documents related to this detainee, and prior reviews for possible release (http://projects.nytimes.com/guantanamo/detainees/1017-omar-mohammed-ali-al-rammah):

  1. Combat Status Review Tribunal (CSRT) Summary
  2. Administrative Review Board (ARBs) (3 documents)
  3. Joint Task Force – Guantanamo (JTF-GTMO) Assessment

 The Pentagon’s PRB Conference Room

I mentioned in a previous post that I would share a little about the conference room where the PRBs are viewed.

The office suite that contains the conference room has always looked as though no one works there. Maybe its occupants take leave when the PRBs are aired in their conference room.

The suite has large windows commanding a spectacular view of Washington, DC monuments across the Potomac. Inside, 10 leather high-back chairs surround a slender diamond-shaped table, that has a hidden compartment where our “missing” conference call spider telephone was finally found after phone and video-chat messages saying “we can’t find the phone to connect to the PRB”. The rich blue carpet complemented the wood and leather, and even matched the dozen grayish and red low-back chairs lining the walls.

On the walls hand five or six blown up photographs depicting soldiers being greeted by family when coming home, parachuters peering out of a helicopter hovering over a packed Navy football stadium, and other military scenes.  In the corner behind the door was a bold, snazzy poster for Armed Forces Day, 21 May 2016, with the slogan “Americas Military – Guardians of Freedom”.

Basically, it was just a regular conference room. But it happened to have a live video connection to one of the most inaccessible, secretive prisons that exists anywhere in the world.

 George Edwards

_______

Three Guantanamo detainees cleared for release; A fourth held as continuing threat

Department of Defense LogoIn July 2016, Guantanamo Bay Periodic Review Boards (PRBs) cleared three detainees for release, and found that a fourth detainee posed a continuing threat to the national security of the United States and would not be cleared for release.

These detainees, each of whom has each been held at Guantanamo Bay since 2002, each had argued in separate PRB hearings that he should was not a threat, and that he should be repatriated to his home country or resettled in a third country.

Those cleared between 6 and 11 July 2016 were: Muhammed Rajab Sadiq Abu Ghanim (ISN 044), of Yemen, who requested that he not be sent home to Yemen; Shawqi Awad Balzuhair (ISN 838), also of Yemen; and Abdul Latif Nasir (ISN 244), of Morocco, and whom the PRB recommended be released only to Morocco.  The PRB did not clear for release Said bin Brahim bin Umran Bakush (ISN 685) of Algeria.

As an example of a PRB decision in which a detainee is cleared, I quote below the full text of the PRB decision in the case of Shawqi Awad Balzuhair (ISN 838)

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee is no longer necessary to protect against a continuing significant threat to the security of the United States.

In making this determination, the Board considered that the detainee’s degree of involvement and significance in extremist activities has been reassessed to be that of a low-level fighter. The Board also noted the detainee’s lack of expression of support for extremist ideologies, the detainee’s compliance record at Guantanamo, and the detainee’s lack of ongoing extremist ties.

The Board recommends transfer, with the appropriate security assurances as negotiated by the Special Envoys and agreed to by relevant USG departments and agencies.

The PRB decision in the case of Said bin Brahim bin Umran Bakush of Algeria (denial of release) is found here:

 

The Periodic Review Board Secretariat today announced that 7 additional PRBs have been scheduled for detainees in August 2016.

The Periodic Review Boards are being studied by the Period Review Board (PRB) Project of the Indiana University McKinney School of Law.

___

Yemeni Detainee Expected to Request Release from Guantanamo

Omar Mohammed Ali al-Rammah - Internment Serial Number 1017

Omar Mohammed Ali al-Rammah – Internment Serial Number 1017 – Will ask a special Guantanamo Board for his freedom

On Thursday, 21 July 2016, Omar Mohammed Ali al-Rammah (ISN 1017), who is a Guantanamo Bay detainee from Yemen, will likely tell a group of U.S. officials that he is not a threat to U.S. national security, and he should be repatriated to Yemen or resettled in a 3rd country.

al Rammah is about 40 or 41 years of age, was born in Yemen, and has been held at Guantanamo Bay for just over 13 years. He will argue for his freedom from the prison where he has lived for almost a third of his life.

This hearing at which al Rammah will argue is called a Periodic Review Board (PRB), and will be conducted pursuant to a 2011 Executive Order which has required most detainees to have a “periodic review” of their detention status. Though Al Rammah has had similar reviews under now defunct processes, this is his “initial review” (or “initial PRB”) under the 2011 procedure.

If a detainee is cleared for release after his initial review, he would have no additional hearings. If he is not cleared for release he would have a “file review” every six months. If he remains uncleared, he would have a “full review” every three years.

About 60 the 76 men remaining captive at Guantanamo are entitled to PRBs per the rules, and about 55 have had an initial review. Many who have had initial reviews were subsequently cleared for release, and many of those have actually been released post-initial review.

PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings.

What will al Rammah’s PRB be like?

al Rammah’s initial review on Thursday will likely be similar to the 55 or so initial reviews held since the 2011 Executive Order was implemented in 2013. His will be the second PRB I attend, with my first being that of Ismael Ali Farag al Bakush held on Thursday, 14 July 2016, after my being denied permission to attend earlier PRBs multiple times. I now have a clearer idea of what to expect.

I suspect that representatives of Non-Governmental Organizations (NGOs) will be present with me at the Pentagon on Thursday, and possibly some media.

Others present for the hearing will include members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives will watch remotely in his or her office in the DC area. Also likely to be present for the hearing are the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals would be located at Guantanamo Bay or elsewhere.

Intelligence gathered on al Rammah

It was been contended that al Rammah traveled to Afghanistan to help support the Mujahedin, and later joined and fought for the Taliban and the Libyan Islamic Fighting Group (LIFG).  He allegedly trained at various camps, developed expertise in explosives, and pledged to overthrow the government of Muammar Gaddafi in Libya. It has been said that if he is not repatriated to his home country of Yemen and is instead resettled to a 3rd country, he would prefer that it be any Arabic-speaking country other than Libya.

He is said to have been captured in the Republic of Georgia, while living in the Pankisi Gorge area of that country.

The Government is expected to release additional PRB-related documents over the next couple of days.

FYI, the New York Times has posted 5 documents related to this detainee, and prior reviews for possible release (http://projects.nytimes.com/guantanamo/detainees/1017-omar-mohammed-ali-al-rammah):

  1. Combat Status Review Tribunal (CSRT) Summary (1 document)
  2. Administrative Review Board (ARBs) (3 documents)
  3. Joint Task Force – Guantanamo (JTF-GTMO) Assessment (1 document)

George Edwards

Founder, Periodic Review Board (PRB) Project

_______

My travel to observe Guantanamo Bay hearings in the case against alleged 9/11 plotters

Klein & Edwards at Ft. Meade Commisary -- 18 July 2016

At the Ft. Meade Commissary.

 Today I traveled to Ft. Meade, Maryland to observe pre-trial hearings in the criminal case against 5 alleged masterminds of the 9/11 attacks on the World Trade Center and Pentagon. The hearings are being broadcast live from Guantanamo Bay, Cuba, into the Post Theater at the Fort Meade Army Base, and can be viewed there by media, human rights non-governmental organizations (NGOs), victims and victims’ families, and other stakeholders.

I traveled there as an official NGO Observer sponsored by the Military Commission Observation Project (MCOP), which Professor George Edwards founded at Indiana University McKinney School of Law. Our Project, which is also referred to as the Gitmo Observer, has sent dozens of IU McKinney Affiliates — faculty, staff, students and graduates  — to Guantanamo Bay, Cuba and Ft. Meade to attend, observe, analyze, critique and report on these hearings.

My trip to Maryland – Sunday

I flew to Maryland last night, and had time to re-review the wealth of background material the Project provided.  One important resource is the Guantanamo Bay Fair Trial Manual – with lead author Professor Edwards, and whose researchers have included many IU McKinney affiliates. The Manual provides significant information — general and basic, as well as highly specialized information — about the military commissions. It summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom. The Manual is a must read for anyone interested in Guantanamo Bay hearings.

Dean Klein & Professor Edwards in front of the McGill Training Center, the new site for Guantanamo video viewing.

We are in front of the McGill Training Center, the new site for Guantanamo video viewing.

Closed hearing – Monday morning

Early this morning I met Professor Edwards at the hotel, and discussed final details before we went to the army base, which happens to be the home of the National Security Agency (NSA) and other intelligence entities.

We were forced to modify our plans to observe hearings of Khalid Shaikh Mohammad (who was waterboarded 183 times) and the other 4 defendants accused of planning the September 11th attacks. We learned that the military judge decided that today’s hearings would be “closed”, meaning that Observers were not permitted to observe. I was disappointed that I would not have a chance to witness today’s hearings. But, it was still a very worthwhile trip.

 What we did at Ft. Meade – hurdles & highlights

The day had highlights and hurdles.  I’ll mention some below.

First, Fort Meade recently instituted security procedures that require new visitors to stop at the Visitor Center at the base’s Main Gate (Reece Road Gate) and collect a hard plastic badge. Ordinarily Observers would submit their personal information 10 days before they arrive for a hearing, and can pick up their sturdy badges quickly at the Visitor Center.  These procedures apply not only to military commission observers, but also to anyone with business on the base, and includes civilians visiting family.

We arrived at the Visitor Center to pick up my badge. We had quite a wait. There were dozens of other people also seeking to get badges. I was grateful that Professor Edwards had a permanent Ft. Meade badge, which made it easier for me to get processed in.  The good news is that once you get cleared, you can swipe your badge at any of the gates and drive onto the base, directly to the viewing site.

A word to the wise for IU  McKinney Affiliates who plan to observe Guantanamo Bay hearings at Fort Meade:  Bring your drivers’ license and passport, and arrive early.

Dean Klein reading a copy of the Guantanamo Bay Fair Trial Manual -- Volume I.

The Guantanamo Bay Fair Trial Manual is an invaluable tool to help prepare for an Observation mission.

Second, after I gained clearance to enter the base, Professor Edwards and I went to the McGill Training Center, which will soon be the new permanent site for video observations of Guantanamo proceedings.  (Until now, all the video hearings were broadcast into a large auditorium at the Post Theater, where they show feature films in the evenings and on weekends.)  A staff member escorted Professor Edwards and me through the training center, and explained that the site change had been made for several reasons, including the ability to move hearings to a variety of different rooms to enhance security by keeping exact screening locations unknown until the hearings take place.  Most of the rooms at the training center are also much smaller than the Post Theater auditorium, which may make sense since at times only a small number of Observers attend hearings on the base.

Outside the Post Theater, where "Central Intelligence" was being screened -- $6.00 for adults, and $3.50 for children.

Outside the Post Theater, where “Central Intelligence” was being screened — $6.00 for adults, and $3.50 for children.

Third, Professor Edwards and I went by the Post Theater, where many IU McKinney Affiliates have viewed Guantanamo proceedings. Unfortunately, the doors were locked and we couldn’t go inside. But, based on what I have heard about the actual theater – that happens to be showing the PG film “Central Intelligence” now (see photo) – it’s very much like a Broadway theater with a big screen set up on the stage to show the Guantanamo Bay feed.

Fourth, Professor Edwards was able to brief me on the status of the Khalid Shaikh Mohammad 9/11 hearings, the substance of some of the upcoming motion hearings that I had hoped to observe today, other cases pending for trial, and the one convicted detainee who is awaiting sentencing.  He also briefed me on the Periodic Review Board (PRB) that he observed at the Pentagon on Thursday the 14th, in which a Libyan detainee asked the Board to send him back to Libya or to a third country for resettlement. That PRB observation is through the IU McKinney Periodic Review Board Project.

Fifth, it was good to tour the facilities mentioned above. It was also interesting to drive around the base, appreciate its size and the breadth of work performed there.

Klein at Ft. Meade - in front of Post Theater sign - 18 July 2016

Another shot in front of the Post Theater

Conclusion

Although I was disappointed that I could not observe a hearing today, I am glad that I made the trip, and I am proud that the McKinney School of Law and our Military Commission Observation Project provides this very special opportunity to members of our community.

Every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself.  Details about this process can be found here.

By Andrew (Andy) Klein

Dean & Beam Professor of Law

Indiana University McKinney School of Law

Posted by George Edwards on behalf of Dean Klein

_______

Indiana Law Dean Travels to Ft. Meade for Guantanamo Bay, Cuba Hearings

Klein & Edwards at Ft. Meade Commisary -- 18 July 2016

Dean Klein (right) and Professor Edwards at the Ft. Meade Commissary.

Andy Klein, dean of the Indiana University McKinney School of Law, traveled to Ft. Meade, Maryland to observe war crimes hearings broadcast live from Guantanamo Bay, Cuba. Dean Klein was an official Non-Governmental Organization (NGO) Observer, sponsored by IU McKinney’s Military Commission Observation Project (MCOP), that was founded by Professor George Edwards, who joined Dean Klein on this observation mission.

The Pentagon granted the IU McKinney project permission to send IU McKinney Affiliates — students, faculty, staff, and graduates — to Guantanamo Bay to view proceedings live and to Ft. Meade to view via secure video feed. Dean Klein is the most recent of the dozens of IU McKinney Affiliates selected for observation missions, during which they attend, observe, analyze, critique and report on these hearings.

Klein & Edwards at Ft. Meade Post Theater -- 18 July 2016

Dean Klein & Professor Edwards at Ft. Meade’s Post Theater, where war crimes hearings from Guantanamo Bay are viewed during the day, and “Central Intelligence” and other movies are viewed at night.

This week’s pre-trial hearings, scheduled for 18 – 22 July, are in the criminal case against five alleged masterminds of and participants in the 9/11 attacks on the World Trade Center and Pentagon. They include Khalid Shaik Mohammed, who is the alleged chief architect of the 9/11 attacks, along with four others including alleged would-be hijackers who were prevented from participating due to visa denials and other reasons, men who allegedly transferred money for the flight training for hijackers, and men who otherwise assisted in the plot that resulted in almost 3,000 dead. Their charges include murder in violation of the laws of war and hijacking.

Typically, first time NGO Observers, such as Dean Klein, stop at the Ft. Meade Visitor Center to gain clearance and then pick up a badge to enter the base.

Dean Klein noted that though they arrived early to pick up his badge they had “quite a wait, made longer because they didn’t have my original paperwork submitted weeks ago and I had to re-register on the spot. Also, there were dozens of other people also seeking to get badges. Fortunately Professor Edwards already had his permanent Ft. Meade badge, which made it easier for me to get processed in.”

Dean Klein & Professor Edwards in front of the McGill Training Center, the new site for Guantanamo video viewing.

Dean Klein & Professor Edwards in front of the McGill Training Center, the new site for Guantanamo video viewing.

After the badging process, NGO Observers then travel to the base’s secure viewing site, which has been the Post Theater (that also shows feature films on weekends), but is shifting to the McGill Training Center, also on the base.

When Dean Klein and Professor Edwards arrived at the viewing center, it was confirmed that the military judge presiding over the 9/11 case had decided that today’s hearings would be “closed”, meaning that NGOs Observers were not permitted to observe.  Both Dean Klein and Professor Edwards noted that despite the absence of an open hearing, the pair had a productive morning at Ft. Meade.

Dean Klein said “I was disappointed that today’s hearings were closed. But, coming to Ft. Meade has offered great insights into our Military Commission Observation Project, and the contributions of IU McKinney on the topic of rights and interests of all Guantanamo Bay stakeholders. Our trip to Ft. Meade was very worthwhile.”

Professor Edwards said “If the hearings had been open, Dean Klein and I would not have been able to tour facilities that would have been unavailable during an open session, and we would not have been able to talk with people who would have been otherwise engaged during an open hearing. Our behind-the-scenes experience at Ft. Meade was enlightening, and would not have been possible had we been watching video feed from Guantanamo that day”.

All IU McKinney Observers contribute to the Guantanamo Bay Fair Trial Manual, of which Professor Edwards is the main author, that provides significant information — general and basic, as well as highly specialized information — about the military commissions. The Manual also contains information about Guantanamo Bay Periodic Review Boards, special proceedings held at Guantanamo Bay and viewable on video at the Pentagon, during which Guantanamo detainees may request repatriation to their home country or resettlement in a third country.

Dean Klein reading a copy of the Guantanamo Bay Fair Trial Manual -- Volume I.

Dean Klein reading a copy of the Guantanamo Bay Fair Trial Manual — Volume I.

The Manual summarizes the applicable law, explains the charges, identifies the individuals and entities who have rights and interests associated with the tribunal, describes a plan that Observes might follow as they carry out their observation mission, and even provides a chart of a who’s who in the courtroom.

Dean Klein said: The Manual is a must read for anyone interested in Guantanamo Bay hearings, and a special must read for anyone doing an Observation mission to Ft. Meade or Guantanamo Bay.”

Dean Klein summarized his Ft. Meade experience, and his recognition of Professor Edwards and his Guantanamo Bay work:

Although I was disappointed that I could not observe a hearing today, I am glad that I made the trip, and I am proud that the McKinney School of Law and our Military Commission Observation Project provides this very special opportunity to members of our community.

Professor Edwards noted that “every IU McKinney Affiliate – faculty, staff, student, graduate — is invited to register for the possibility of undertaking an Observer mission to Ft. Meade, or to Guantanamo Bay, Cuba, itself.  Details about this process can be found on the IU McKinney website. We hope that our Affiliates may also be able to observe Periodic Review Boards at the Pentagon, and we will post notices if Pentagon observation opportunities become available to assist out Periodic Review Board Project”.

_______

Libyan Detainee Requests Release from Guantanamo

GTMO - ismael-ali-farag-al-bakush - ISN 708 -- 1

Ismael Ali Faraj Ali Bakush, Guantanamo Prision # ISN 708, asked Board to release him

This morning, Ismael Ali Faraj Ali Bakush (ISN 708), who is a Guantanamo Bay detainee from Libya, pleaded to a group of U.S. officials that he is not a threat to U.S. national security, and he should be repatriated to Libya or resettled in a 3rd country. Bakush is around 47 or 48 years of age, and has been held at Guantanamo Bay for a month shy of 14 years. Today he argued for his freedom from the prison, where he has lived for almost a third of his life.

This hearing, which is called a Periodic Review Board (PRB), was conducted pursuant to a 2011 Executive Order which has required most detainees to have a “periodic review” of their detention status. Though Bakush has had similar reviews under now defunct processes, this is his “initial review” (or “initial PRB”) under the 2011 procedure.

If a detainee is cleared for release after his initial review, he would have no additional hearings. If he is not cleared for release he would have a “file review” every six months. If he remains uncleared, he would have a “full review” every three years.

About 60 the 76 men remaining captive at Guantanamo are entitled to PRBs per the rules, and about 55 have had an initial review. Many who have had initial reviews were subsequently cleared for release, and many of those have actually been released post-initial review.

PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings.

Getting to the PRB hearing; the other observers

Bakush’s initial review today was likely similar to the 55 or so initial reviews held since the 2011 Executive Order was implemented in 2013. Today’s PRB was my first, having multiple times been denied permission to observe. I had some sense of what to expect, having read reports from media and non-media representatives who had viewed earlier PRBs, but I also believe that the more qualified people who observe the proceedings first hand, the greater the transparency.

I was up early to take the Metro from DC to the Pentagon, which is where PRB observation takes place now, rather than its earlier viewing location at a Virginia building near the Pentagon. It was suggested that we arrive at the Pentagon not long after 7:00 a.m., to be certain that all security and other formalities would be completed so we could adjourn to a special conference room before the 9:00 scheduled PRB start.

When I was at the Pentagon a few months ago, the new Visitor Entrance was under construction, and it was cramped and unwieldy to gain access to the mammoth facility. The new Visitor Entrance is markedly updated and spacious, with significantly more x-ray machines and other security measures in place. Though no clear signage instructed visitors to the appropriate queues (e.g., no sign for the uniformed military personnel line or the “other” line), it was still quite easy and quick to be processed – at least at that hour on a Thursday morning.

After clearing security, I entered into the Visitor Waiting Area (after another guard made certain that I still had the Visitors Badge that had been handed to me just a few yards before I passed through the airport-like metal detectors), where I was soon joined by what appeared to be contractors, uniformed military personnel, a high school group, an ROTC group, a group of dozens of Japanese military personnel clad in crisp white uniforms, and others – waiting to be escorted into the Pentagon proper.

Two representatives from the Periodic Review Secretariat (PRS) came to collect the 5 non-media observers, and we all processed into the main complex and walked down multiple hallways in the Pentagon maze. Though I know the names of our escorts, and the name of the offices that housed the conference room where we observed, out of an abundance of caution, I will not provide details of them.

The 4 other observers consisted of a an undergraduate intern from a different DC-based organization, a person who had graduated from law school a year or so ago and was working for a DC-based organization, an investigator from a DC-based organization along with that person’s undergraduate intern. I did ask myself about the observer selection process, taking into account the rounds of application submission / denial / application supplements I went through to get cleared for 2 specific hearings only.

Coincidentally, I knew one of the other observers from another organization with which she had been previously affiliated.

pentagonReaching the Pentagon hearing room

We observers and our military escorts snaked our way down multiple, high-ceilinged corridors in the complex, passing pale nondescript doorways and archways that led to seemingly reinforced entry points into high-security areas. We arrived at the door of an office that looked like a typical government office like those I had seen in any number of other Departments or Agencies – standard desks and chairs, file cabinets and computers, and clutter.

no-electronic-devices-clipart-1Off to the side of that office was a door leading into what I would learn was the conference room where we would observe the hearings. Before reaching that conference room door, we had to relieve ourselves of our electronic devices – phones, laptops, iPad, Fitbit – anything with an on / off switch. We placed all of our items on a table.

Several of us went on a Starbucks run, down to the Pentagon’s expansive restaurant area. It was like any other Starbucks, except that while standing in line our group could not fiddle with our mobile phones, as we had already been liberated of them. It gave me a chance to become reacquainted with the young lawyer observer whom I had met before.

Getting situated in the hearing room

After refreshments, we winded our way back to the nondescript office. It was almost 9:00, the time for the PRB to begin.

We filed past the table that held our electronics, and entered the conference room. We sat around a conference room table that seemed to have just enough seats for the 5 observers, our escorts and a couple of other Department of Defense people who joined us, both uniformed and non-uniformed.

The observers all were required to sign another document (in addition to the Ground Rules we previously signed), this one swearing that we knew the rules related to SCIFs — sensitive compartmented information facilities – and that we were complying with those rules, including not having recording devices in our possession. Another reminder to us to double-check our pockets for extra mobile phones, etc.

This conference room was very small, packed with the conference table and chairs, and lots of other equipment occupying almost every square inch of the room’s real estate, including, as I recall, the walls.

There was a big screen on one wall, positioned such that almost no one in the room had a natural, straightforward view of it. I chose a seat from which at least I didn’t have to turn my body to see the screen.

As 9:00 got closer, the Observers shared small talk. Others in the room sat quietly doing their jobs related to the technical aspects of the hearing, or maybe perhaps observing the observers–I’m not sure.

The Guantanamo side of the camera – the PRB begins

Initially I sought to absorb the environment of the room, but I also focused on signing the SCIF form and exchanging pleasantries with fellow observers (Have you attended a PRB before? You’re a college junior – do you plan to go to law school? What issues are you working on as a summer intern at your organization?)

All of a sudden, we began to hear distant voices over the web-shaped speaker nestled in the center of the conference room table. Audio checks.

Almost precisely on time, the screen came to life. We could see a small, barren-walled claustrophobic room in which sat a very small rectangular table with 3 chairs, which was surrounded by 3 men.

For all PRBs the detainee is physically in Guantanamo Bay. During the hearing, he sits at the head of the rectangular table on the Guantanamo Base, flanked by a linguist who sat at a place setting on one side of the table. The linguist sits directly across from the detainee’s Government-appointed personal representative. Seated on 3 sides at the end of a rectangular table, the arrangements would have been suitable for a shared meal among the 3, or board games. Had Bakush had private counsel, perhaps that person would also have sat at the table.

A video camera is pointed towards the three sitting at the Guantanamo table. The camera faced Bakush head on, and captured the right side of the face of the linguist’s and the left side of the face of the personal representative. The linguist and the personal representative had to turn their heads slightly to see and speak directly into the camera.

At 9:08, a few minutes past the appointed hour, the hearing began.

Eyes naturally gravitated to the focus of the hearings – on Bakush. He appeared hunched forward over the stack of white papers on the table, dressed in white gown flannel-like top that may have been local to Libya. His full, long, seemingly dark beard appeared to touch the table as he leaned forward. The screen appeared to be a little fuzzy, so I cleaned my glasses. The screen was still fuzzy, with the faces a bit blurred.

Bakush’s facial expressions appeared not to change dramatically throughout the 13-minute hearing. It was impossible to know whether he understood what was being said or read, as virtually the entire hearing was conducted in English, and I do not know if he understands English. He waived reading of the unclassified government document in Arabic.

Was Bakush emotionless during the PRB? Was he detached or interested? It is impossible to know what was going on in his mind, and it does not do justice to try to read what could be made out of his expressions, his mannerisms, or his posture.

As documents were being read into the record in English, Bakush from time to time would flip through white papers sitting in front of him on the table. I do now know what, if anything, was written on those sheets, or what language any text might have been. Perhaps those pages contained his own personal statement that he would read into the record later? The observers were not permitted to stay in the room while he, through his own mouth, made his personal plea for release from Guantanamo.

A distant voice was heard listing out the titles / roles of various people who were present at the hearing, either at Guantanamo in the hearing room, or elsewhere.

Others present for the hearings included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives watched remotely in his or her office in the DC area. Also present for the hearing were the Legal Advisor to the Board; the Case Administrator; a Hearing Clerk; and a Security Officer, though it is not clear where these individuals were located at Guantanamo Bay or elsewhere.

The PRB hearing itself

The PRB hearing itself lasted a total of about 13 minutes. The clock on the wall had a time different from the time announced by the distant voice piped in through the speakers, and those times were different from the time on my watch. I didn’t catch the precise number of minutes. I thought I would be able to see the time on the transcript, but the Pentagon posted a notice indicating that Bakush requested that the public transcript of his hearing not be posted online.

Suffice it to say that the hearing was very short.

After the roll call of attendees that began the hearing, a voice said something like this — “This board is called to order. This board is convened to determine whether continued law of war detention is warranted for detainee [Ismael] in order to protect against a continuing significant threat to the security of the United States.” [Quote based on notes and was not verified as the transcript was not available on the PRS website online after the hearing.]

The first document read into the record, in English, was the Government’s Unclassified Statement. It was read by a woman who did not appear on camera. It answer the question of who does the U.S. Government believe Bakush is and what does the U.S. Government believe Bakush did. Essentially, the Statement summarized reasons that the U.S. believed that Bakush poses a continuing threat to U.S. National Security.

Government views on “Who is Bakush”?

First, it should be noted that the allegations that the government made against Bakush in its unclassified summary are not criminal charges. That is, the government has not levied any criminal charges against him in the Guantanamo Bay U.S. Military Commissions. These allegations related to the Government’s assessment as to whether Bakush is a threat to US national security and whether he should be released from detention.

The unclassified summary document alleges that Bakush alleges in definite terms that Bakush “was a Libyan Islamic Fighting Group (LIFG) explosives expert who trained al-Qaida members”, and he “developed close relationships with several al Qaida leaders and provided explosives training to LIFG and al Qaida operatives, including some who later conducted attacks in Kuwait and Morocco”.

A number of other allegations against Bakush were couched in more tentative terms, such as “probably” – he “probably” “associated with and provided operational support to” key al Qaida figures. He “probably” was in Afghanistan from 1991 – 1994, and again starting in 1998.. He “probably helped” al Qaida, and “communicated regularly with prominent” al Qaida figures, including “possibly” Abu Zubaydah and “probably” senior al Qaida leader Abu Faraj al-Libi. However, using stronger language, one allegation was that he “almost certainly” “plotted to kill Libyan leader Moammar Qadhafi”

The full text of the Government’s Unclassified Statement follows:

 

Bakush’s Government Appointed Opening Personal Statement

Bakush’s U.S. Government-Appointed Personal Representative, dressed in fatigues, said in his Opening Statement that he was “presenting “Bakush’s case this morning”. He said that Bakush had “been cooperative and receptive while meeting with me”, and that Bakush “is eager and excited to begin a new chapter in his life.” He said that Bakush “has learned to be more opened minded [sic], tolerant and accepting to others while living in a communal living setting”, and that Bakush “believes that his communal living arrangement allows him more opportunities to gain exposure for himself to other detainees’ cultural and religious backgrounds”, and as a result, Bakush “now respects and values the opinions of others from various cultural backgrounds”.

The Personal Representative said that he “was not able to contact [Bakush’s] family, but understand from our discussions that his mother has properties that would enable her to offer [Bakush] financial support. His cousin is employed and is also willing to help [Bakush] financially”. It was not mentioned why the Personal Representative was unable to contact Bakush’s mother, to find out firsthand about the “properties that would enable her to offer [Bakush] financial support”, or could not contact the employed cousin who “is also willing to help [Bakush] financially. Would it be practicable to release Bakush based on his being able to receive family assistance, if the Personal Representative is unable to contact these family members?

The Personal Representative spoke about how Bakush “enjoys watching and playing many sports such as soccer and swimming”, has taken classis in health and life skills, and enjoys cooking for others. Bakush “would like to work in the restaurant industry”. He looks forward to having his own family, and to raising children of his own. He would prefer to live in an Arabic speaking country, but “is willing to relocate to a country that provides him opportunities for a successful future”. He is “willing to participate in a rehabilitation or reintegration program as well”.

Then, the Bakush’s US Government-Appointed Personal Representative of Bakush read the Personal Representative’s Opening Statement, the full text of which follows:

 

The following document appeared on the PRS website following the hearing, and indicates that Bakush requested to not have his own written PRB statement published to the website:

 

The following document appeared on the PRS website following the hearing, and indicates that Bakush requested to not have the transcript of his PRB published to the website.

 

FYI, the New York Times has posted http://projects.nytimes.com/guantanamo/detainees/708-ismael-ali-farag-al-bakush/documents/115 documents related to this detainee, and prior reviews for possible release:

  1. Combat Status Review Tribunal (CSRT) Summary
  2. Administrative Review Board (ARBs) (3 documents)
  3. Joint Task Force – Guantanamo (JTF-GTMO) Assessment

George Edwards

_______

Permission Granted to Observe Guantanamo Bay Periodic Review Boards (PRB)

GTMO - ismael-ali-farag-al-bakush - ISN 708

Ismael Ali Faraj Ali Bakush will ask Periodic Review Board for his freedom from Guantanamo Bay on 14 July 2016

For the better part of ½ year I have been seeking Pentagon permission to observe Guantanamo Bay Periodic Review Boards (PRBs) at which a detainee is permitted to argue that he does not pose a threat to U.S. national security, and he should be repatriated to his home country or resettled in a 3rd country.

The Pentagon office responsible for selecting PRB observers sent me multiple informal denials, and requests for me to supplement my observer applications. Finally, after the series of written and oral requests, this morning the Pentagon notified me that I had “been approved to attend the PRB Unclassified Public session for Ismael Ali Faraj Ali Bakush (ISN 708) on 14 July 2016 and Omar Mohammed Ali Al-Rammah (ISN 1017) on 21 July 2016”.

I was surprised. I would finally be permitted to observe a “parole” hearing to which close to 60 of the remaining 76 detainees at Guantanamo were entitled per a 2011 Executive Order. About 55 of these men had already had this particular type of PRB – their “initial review”. If a detainee is cleared for release after his initial review, he would have no additional hearings. If he is not cleared for release he would have a “file review” every six months. If he remains uncleared, he would have a “full review” every three years.

I was glad to be permitted to observe 2 of the remaining initial reviews, since there would soon be no more initial reviews. The PRB Project of the Gitmo Observer would benefit from its Director (me) being permitted to witness these final PRBs.

But, there were still hurdles to overcome before observing.

First, I had to sign a set of “Ground Rules for Coverage of Periodic Review Boards”, and agree not to be embargoed from disclosing “protected information” that might be revealed during the public portion of the PRB, not to bring any electronic devices into the room, not to draw or sketch the likeness of any participants, among other things.

Then, I had to await instructions on accessing the theretofore undisclosed location of the PRB observation.

For all of the PRBs, the detainee is physically in Guantanamo Bay. During the hearing, he sits at a table in a small room on the Guantanamo Base, flanked by a linguist, and his Government-appointed personal representative. If he has private counsel, I presume that that person sits at the table as well.

A video camera is pointed towards those sitting at the Guantanamo table, and at the appointed hour signals are sent to participants and observers at various locations. The “Board” itself, that conducts the PRBs, consists of 1 representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. Presumably each of those representatives is watching remotely in his or her office in the DC area. In the past, the media and non-media observers would watch in a room in a Virginia building near the Pentagon.

I was told that I would receive instructions / directions tomorrow.

In the meantime, I am researching Ismael Ali Faraj Ali Bakush (ISN 708), the detainee whose PRB is scheduled for this Thursday. He is from Libya, is around 47 or 48, and has been held at Guantanamo Bay for a month shy of 14 years. He is alleged to have had military training at an al-Qaida training camp, and engaged in other activities against the U.S.

I look forward to discovering more about him, about his background and about those involved in his PRB. It is possible that the Board will ask him or his personal representative questions, the answers of which might provide information not contained in the documents published on the PRB website (www.prs.mil) or elsewhere publicly available.

The New York Times has 5 documents related to this detainee, and prior reviews for possible release:

  1. Combat Status Review Tribunal (CSRT) Summary
  2. Administrative Review Board (ARBs) (3 documents)
  3. Joint Task Force – Guantanamo (JTF-GTMO) Assessment

I will report back after this PRB.

Defense Department Says Guantanamo Prisoner Released After Periodic Review Board (PRB)

Today, 11 July 2016, 2 Guantanamo Bay detainees were released from their Cuban prison and sent to Serbia for humanitarian settlement. The State Department announced this prisoner transfer, as did the Department of Defense announcement of today’s transfer of 2 detainees to Serbia. Please compare today’s State Department announcement the the Defense Department announcement below:DoD-logo-resize

Detainee Transfers Announced

07/11/2016 09:05 AM CDT

IMMEDIATE RELEASE No. NR-260-16
July 11, 2016

Detainee Transfers Announced

July 11, 2016

The Department of Defense announced today the transfer of Muhammadi Davlatov and Mansur Ahmad Saad al-Dayfi from the detention facility at Guantanamo Bay to the Government of Serbia.

As directed by the president’s Jan. 22, 2009, executive order, the interagency Guantanamo Review Task Force conducted a comprehensive review of this case. As a result of that review, which examined a number of factors, including security issues, Davlatov was unanimously approved for transfer by the six departments and agencies comprising the task force.

On Oct. 28, 2015, a Periodic Review Board consisting of representatives from the Departments of Defense, Homeland Security, Justice, and State; the Joint Chiefs of Staff, and the Office of the Director of National Intelligence determined continued law of war detention of al-Dayfi does not remain necessary to protect against a continuing significant threat to the security of the United States. As a result of that review, which examined a number of factors, including security issues, al-Dayfi was recommended for transfer by consensus of the six departments and agencies comprising the Periodic Review Board. The Periodic Review Board process was established by the president’s March 7, 2011 Executive Order 13567.

In accordance with statutory requirements, the secretary of defense informed Congress of the United States’ intent to transfer these individuals and of the secretary’s determination that these transfers meet the statutory standard.

The United States is grateful to the Government of Serbia for its humanitarian gesture and willingness to support ongoing U.S. efforts to close the Guantanamo Bay detention facility. The United States coordinated with the Government of Serbia to ensure this transfer took place consistent with appropriate security and humane treatment measures.

Today, 76 detainees remain at Guantanamo Bay.

More information on the Periodic Review Secretariat can be found here: http://www.prs.mil/.

For more information on Periodic Review Boards, please check the Periodic Review Board (PRB) Project website or The Gitmo Observer.

Guantanamo Prisoner Released to Serbia After Periodic Review Board (PRB)

State Department Logo -- usdos-logo-seal

Secretary of State John Kerry announced transfer of 2 detainees to Serbia for Humanitarian Resettlement

Guantanamo hearings continue to lead to inmates being released from the island prison. On 11 July 2016, following a Periodic Review Board (PRB), the U.S. released a Yemeni detainee, Mansur Ahmad Saad al-Dayf, to Serbia for humanitarian resettlement. The Periodic Review Boards were instituted following a 2011 Executive Order issued by President Obama, and has helped whittle down the number of Guantanamo Detainees to 76, from a high of almost 800.

Today, another detainee, Muhammadi Davlatov, from Tajikistan, was also released to Serbia. He was cleared for released not through a PRB, but through another process, the 2009-2010 Executive Order Task Force.

This week, on 14 July 2016, another detainee is having his PRB, hoping to plead for his release. Ismael Ali Faraj Ali Bakush, from Libya, will likely ask a the Board for release to Libya or to a third country. I have requested permission to observe this PRB at a remote location near the Pentagon. I will keep you updated as to whether the Pentagon grants permission to review the hearing, which is meant to be “public” and “transparent”.

At a PRB, the detainee makes arguments to a cross-section of representatives from agencies within the US National Security community (Departments of State, Defense, Justice &Homeland Security; Office of the Director of National Intelligence; Office of the Joint Chiefs of Staff).  Detainees argue that they are not a threat to the national security of the U.S., and will not get involved in terrorist activity when they are released. For more information on Periodic Review Boards, please check the Periodic Review Board (PRB) Project website.

Following is a Press Statement by Secretary of State John Kerry on the 2 detainees transferred to Serbia today:

Serbia Offers Two Former Guantanamo Detainees Humanitarian Resettlement

Press Statement

John Kerry
Secretary of State
Washington, DC
July 11, 2016

The United States is grateful to the Republic of Serbia for offering humanitarian resettlement to two individuals formerly in U.S. custody at the Guantanamo Bay, Cuba, detention facility.

On July 11, the Department of Defense announced the transfer of a Tajik national, Muhammadi Davlatov, and a Yemeni national, Mansur Ahmad Saad al-Dayfi, to Serbia. Each detainee was unanimously approved for transfer by six U.S. government departments and agencies: Mr. Davlatov through the 2009-2010 Executive Order Task Force, and Mr. al-Dayfi by the more recent Periodic Review Board process. Serbia joins 30 other countries which, since 2009, have extended resettlement opportunities to over 100 detainees.

The United States appreciates the generous assistance of Serbia as the United States continues its efforts to close the Guantanamo Bay detention facility. This significant humanitarian gesture is consistent with Serbia’s leadership on the global stage.

http://www.state.gov/secretary/remarks/2016/07/259522.htm

_______

Guantanamo Detainee Rabbani Requests Freedom

Abdul Rabbani

Abdul Rabbani

Yesterday, 7 July 2016, Adbul Rabbani requested a Guantanamo Bay “Periodic Review Board” to set him free, after almost a dozen years at the remote island prison.

Unfortunately, I was not permitted to attend live video of the hearing, that was broadcast into a secure building near the Pentagon, with such “public” hearings being open to select human rights organization representative, legal experts, and media. My application to attend these hearings is still pending. So, I cannot describe to you what Rabbani looks like, his demeanor, the manner in which he interacted with his Government-appointed Personal Representative or his Private Counsel (if in fact his private counsel was present), what the room looks like or how it is set up, whether Rabbani was shackled to the floor, or any other aspects or dynamics of the public portion of the hearing.

Instead, I post below 3 documents that the Pentagon posted on its website (www.prs.mil) after yesterday’s hearings. These documents shed some light into who the government believes Rabbani is and what the government believes Rabbani did, what his Personal Representative said during the hearing (I attach a written statement), and what his private counsel submitted (a written statement — again, I do not know whether the private counsel was present and read the statement, or whether it was submitted separately).

Gulam Rabbani

Rabbani’s brother, who is also incarcerated at Guantanamo Bay

Regarding documents, the Pentagon posted that at the request of Rabbani, his own written personal statement and the transcripts of the public portion of the hearing were not posted. Had I been permitted to be present at the hearing, I would have heard what Rabbani had to say in his personal statement, and I would have heard the interaction between and among participants (questions, answers, discussion). Now there is no way to know what Rabbani wrote or said in his plea that he is not a threat to the national security of the U.S. Based on the statement of the private counsel, it is possible that he requested to be sent to Saudi Arabia (Medina) where he has family, rather than Pakistan, where he first got involved in matters that ended up getting him to Guantanamo Bay. Also, we do not know whether in his written statement or in otherwise during the hearing the topic of came up of his brother, who is also incarcerated at Guantanamo Bay.

Here is the Government’s Summary of Unclassified Information on Rabbani:

 

Here is the Opening Statement of Rabbani’s Government-Appointed Personal Representative:

 

Here is the Opening Statement of Rabbani’s Private Counsel:

 

Here is a screenshot indicating that  “At the request of the detainee, the detainee’s written submission is not posted”.

Rabbani - PRB Written Personal Statement Not Authorized for Release by Rabbani - 7 July 2016

 

Here is a screenshot indicating that “At the request of the detainee, the transcript of the detainee session is not posted“.

Rabbani - PRB Transcript Not Authorized for Release by Rabbani - 7 July 2016

 

What about other detainee written statements & public PRB hearing transcripts?

Other detainee written statements appear on http://www.prs.mil, and other PRB public session transcripts also appear. Public documents from other PRBs will be posted on this site after I observe a PRB in which those documents will be released. That way, readers can get a fuller picture of the PRB and the PRB process — from documents to personal observations of the proceedings, with the personalities and process being more accurately and comprehensively described.

George Edwards

Periodic Review Board (PRB) Project

Another Guantanamo Detainee permitted to plead for release

omar al rammah - yemen

Omar Mohammed Ali al Rammah

The Pentagon posted on their website a hearing date for another detainee to be permitted to plead for his release.

On 21 July 2016, Omar Mohammed Ali Al-Rammah, will be given an opportunity formally to request repatriation to his home country (Yemen — which would almost certainly not be granted) or transfer to a third country. The hearing is called a “Periodic Review Board” or “PRB“.

al Rammah, who is alleged to be a member of al Qaeda, is suspected to have played a major role in “al-Qaida linked plans to conduct explosives operations in Georgia and Chechnya”  in the Republic of Georgia. (Per a JTF-GTMO memorandum from 2008). That 2008 memorandum noted that al Rammah was at that time a high risk (as he was “likely to pose a threat to the US, its interests, and allies”), a medium threat from a detention perspective, and of medium intelligence value.

It was previously reported that the 14 July 2016 was the last scheduled PRB. And that was true at the time. The al Rammah hearing was just added to the public schedule.

It is hoped that the Pentagon will permit me to observe the al-Rammah hearing.

 

Guantanamo Detainee To Plead for Freedom at Special Hearing

Abdul Rabbani

Abdul Rabbani’s PRB is set for 7 July 2016

On Thursday, 7 July 2017, Guantanamo Bay detainee Abdul Rabbani is scheduled to have a chance officially to plead that he poses no threat to U.S. national security and should be released from Guantanamo.

He may speak at a hearing, called a Periodic Review Board (PRB), authorized by a 2011 Executive Order issued by President Obama. Detainees may argue for their freedom before a panel representing a cross-section of the U.S. national security community.

Rabbani is expected to appear in a small room at Guantanamo Bay, with a U.S. government provided military “special representative” at his side. He and the special representative may make statements, call witnesses, or invoke other rights. The review panel consists of representatives of the Departments of Defense, State and Homeland Security; the Chairman of the Joint Chiefs of Staff; and the Office of the Director of National Security – all viewing remotely, presumably via secure video-link from their Washington, DC area offices.

Over 50 PRB “initial reviews” have been held since 2013. After Rabbani’s PRB tomorrow, the last scheduled PRB is set for Thursday, 14 July 2016, for Ismael Ali Faraj Ali Bakush (ISN 708), of Libya, who has been held at Guantanamo since 2002. For a chart of scheduled PRBs (past and future), please see the bottom of this link.

If after the “initial review”, a detainee is deemed not to be a significant threat to the US, arrangements may be sought for repatriating him to his home country or releasing him to a third country. If he is deemed a significant threat, he will have a “file review” every 6 months, and a “full review” every 3 years (“triennial review”).

Denial of me to observe PRBs at remote DC-area location

PRBs are also video-cast live from Guantanamo to a remote facility near the Pentagon, where specially approved media, non-governmental organization (NGO) representatives, and individuals may view the public portion of the proceedings.

One would expect the PRBs to be transparent, with reasonable access for media, human rights observers and individual experts to view from the remote DC-area facility. It has proved difficult to gain permission to observe a PRB.

The Pentagon has denied multiple NGOs permission to observe, including NGOs with longstanding work in Guantanamo Bay detainee related issues. Also, the Pentagon has denied access to at least one individual with longstanding work in the areas of wartime detention, international law, and human rights – me!

I have been seeking permission to attend PRBs for many months, submitting significant materials in support of this request. I have been denied permission to observe PRBs multiple times, for multiple unofficial reasons. I await an official letter from the Periodic Review Secretariat (PRS) either expressly granting permission to observe, or expressly denying permission.

Since over 50 detainees have had their “initial review” PRBs, and only a couple are left, the last opportunity to observe an “initial review” will likely be within the next week.

Criteria for approving media and non-media observers for PRBs

The Periodic Review Secretariat lists criteria for selecting PRB observers as follows:

In selecting applicants for observer status, the following criteria will be considered:

  • Reach of the applicant organization or individual (e.g., audience size, readership, subscriptions, circulation, viewers, listeners, website hits, writings, broadcasts, professional standing, diversity of audience, etc.).
  • Nexus of the applicant’s organizational mission to Periodic Review Board proceedings, wartime detention, international law, and/or human rights.  If the applicant is an individual, the nexus of the individual’s writings, commentaries, and/or broadcasts on the same topics may be considered.
  • Extent to which applicant has provided longstanding and frequent coverage of issues relating to Periodic Review Board proceedings, wartime detention, international law and/or human rights.

All groups, organizations and individuals (if not affiliated with a group or organization) will be evaluated under these procedures.  Applicants are asked to provide documentation and examples of how the organization or the individual meets the above criteria.

http://www.prs.mil/Press-Releases/Observers/http://www.prs.mil/Press-Releases/Observers/

I have applied for observer status under the various prongs, including the second prong (second bullet point) — the “nexus standard” — which calls upon the Pentagon to consider the following when selecting PRB Observers:

 

(1)  For organizations, the nexus of the organizational mission to:

(a) Periodic Review Board proceedings;

(b) wartime detention;

(c)  international law; and/or

(d) human rights. 

 

(2)  For individuals, the nexus of the individual’s writings, commentaries, and/or broadcasts to

(a) Periodic Review Board proceedings;

(b) wartime detention;

(c)  international law; and/or

(d) human rights.

 

We look forward to learning from the Pentagon whether this standard is met and I will be able to observe PRBs, or whether the standard is not met and I will be officially denied (following multiple other denials). It is particularly important to be able to observe PRBs, not only because of the role they may play in the debate regarding closing Guantanamo Bay, but also because these hearings are very important in discussions regarding rights and interests of all Guantanamo Bay stakeholders.

Who is Rabbani?

Rabbani was born in Saudi Arabia, claims citizenship of Pakistan, and is about 46 or 47 years of age. It is alleged that among other things, he operated safe houses in Karachi, Pakistan that housed high level al Qaeda members, and had links with Osama bin Laden, Khalid Shaik Mohammad, and 11 of the 9/11 hijackers.

Gulam Rabbani

Rabbani’s brother — Gulam Rabbani

He was captured in September 2002 in Pakistan in a raid that netted several others since taken to Guantanamo Bay. He and others were held at various prisons, including in CIA custody (black sites), before being transferred to Guantanamo Bay in 2004.

Rabanni’s brother – Gulam Rabbani – is also being held at Guantanamo Bay.

Is Rabbani a risk?                  

In previous years, through different, non-PRB processes, Rabbani was considered a risk.

For example, 9 June 2008, Rear Admiral DAM. Thomas, Jr (US Navy, Commanding) wrote a memo to the Commander of the US Southern Command, recommending Rabbani’s continued detention. He contended that Rabbani’s risk assessment was as follows (bold & all caps in the original):

“A HIGH risk, as he is likely to pose a threat to the US, its interests, and allies”

“A MEDIUM threat from a detention perspective”–

“Of HIGH intelligence value”

The PRB panel is expected to render a decision within a few weeks after the hearing as to whether Rabbani currently poses a significant national security risk to the U.S. A decision is not set to be made until the panel hears directly from the personal representative, and quite possibly from the detainee himself, from witnesses, and from the Government.

The overwhelming majority of each PRB is conducted in secret (closed / classified) proceedings. Most of the PRBs I have reviewed transcripts of list the public sessions as lasting around 19 to 21 minutes on average (again, with that figure being an estimate). The open session would typically consist of the special representative speaking and the detainee making a statement.

Please look forward a future post on the actual Rabbani hearing. Unfortunately, at this point, I will not be able to post based on personal observations in the closed DC-area hearing. I will need to wait until the public transcripts are posted online.

I will be able to gain some insights into the Rabanni proceedings from reading the posts of NGOs and media who have been cleared to attend. Individuals who have witnessed PRBs at DC location have been able to observe the demeanor of the detainee, hear him read his personal statement in his own voice, study his body language, and witness interaction between the detainee and his special representative. Much is missed when one is prohibited from observing PRBs with one’s own eyes in real time.

George Edwards

 

Lawyers Korolev and Kubal Join Guantanamo Observer Advisory Council

Edwards, Korolev & Kubal Join MCOP Advisory Council

Left to right: Professor Edwards (Gitmo Observer Founder); Mr. Leontiy Korolev; Mr. Matt Kubal. Korolev & Kubal are new members of the Gitmo Observer Advisory Council. Professor Edwards is an ex oficio member. The photo was taken in the International Human Rights Law Academic Center at Indiana University McKinney School of Law.

Two Indiana lawyers, Leontiy Korolev and Matt Kubal, were recently appointed as members of the Advisory Council of the U.S. Military Commission Observation Project (MCOP), also known as the Gitmo Observer. The Project, which focuses on U.S. tribunals established at Guantanamo Bay, Cuba, is housed at the Program in International Human Rights Law of Indiana University McKinney School of Law.

Professor George Edwards, who founded the project, said “our Gitmo Observer Advisory Council is a very important part of our overall Project, as it helps us carry out our mandates.”

Regarding the project missions, Professor Edwards said: “Our Military Commission Observation Project’s missions include sending our members to Guantanamo Ba, Cuba (Gitmo) to attend, observe, analyze, critique and report on war crimes tribunals held there. Our Indiana University McKinney School of Law students, faculty, staff and graduates travel to Guantanamo Bay, Cuba, and play important roles related to rights and interests of all stakeholders in the process.”

The Advisory Council guides the Gitmo Observer in fulfilling the project’s responsibilities under the Pentagon’s Convening Authority grant of NGO Observation Status for the Guantanamo Bay U.S. Military Commission hearings. The Advisory Council helps manage The Gitmo Observer site and related social media, screens and selects observers for travel to hearings at Guantanamo Bay & Ft. Meade, and develops resources to educate and train selected observers and others.

Professor Edwards, Mr. Korolev, and Mr. Kubal each recently traveled to Guantanamo Bay, Cuba to monitor hearings. Edwards and Korolev each also recently traveled to Ft. Meade, Maryland to monitor Guantanamo Bay hearings that were simultaneously video-cast by secure link from the Guantanamo Bay courtroom to the Post Theater at Ft. Meade.

In addition to work related to the Guantanamo Bay Military Commissions, Professor Edwards has also undertaken an examination of the Periodic Review Boards (PRBs), through which assessments are made regarding whether specific detainees are subjected to justifiable continued detention when no charges have been or will be filed against them in a U.S. Military Commission.  More about PRBs can be found on the Pentagon’s Periodic Review Secretariat website, and at the Human Rights First website. Professor Edwards’ forthcoming book — The Guantanamo Bay Reader — also examines PRBs, as does the Guantanamo Bay Fair Trial Manual.